erty in the City of Brooklyn, brought under the provisions of Chapter 478, Laws of 1862. It appeared that when the contract for the actual furnishing of the labor and materials, for which plaintiff asserts a lien was made, that one D. was the equitable owner of the premises, under an executory contract of purchase from defendant, who held the legal title; that the contract was made with the as Morrison admtræ. respt. v. The N. Y. There must be affirmative proof that a This was an action to recover damages for the alleged negligent killing of plaintiff's intestate at a railroad crossing. The deceased, a lad about fourteen years of age, was driving his father's team across defendant's tracks when he was struck by a work train and killed. The only question was as to contributory negligence on the part of the deceased. sent and virtually by D., and a personal judgment has been recovered against him for the claim, from which no appeal has been taken, and that defendant, who was the holder of the legal title, with a lien for the purchase-money, which he While the evidence was preponderatafterwards foreclosed, expressly permitted ing, that if the deceased had looked he the contract. By the contract of the sale could have seen the approaching train, to D., defendant made it a condition there was some evidence that he did look, that D. should erect the buildings, and but that there were obstructions which agreed to loan him money for that pur-prevented a train being seen until too Defendant also provided for his late to avoid collision; also from the evown protection against mechanic's liens, idence of other persons standing near by reserving the right to retain from the the track, that the approaching train was moneys to be loaned the amounts of any not heard until just at the time of the pose. such liens that should remain unsatisfied. collision. proof that the person injured was free from contributory negligence, yet that it might be made to appear from circumstances as well as by direct evidence; and that in weighing the circumstances the assumption is not forbidden that all persons are desirous of preserving themselves from injury. Held, That the case was properly subHeld, That the contract for the labor mitted to the jury. While the rule is and materials, having the assent of both well established that a recovery cannot the legal and equitable owners of the be had in such case without affirmative premises, the mechanic acquired a valid lien as against each, and that defendant, upon a foreclosure of his lien, for the purchase money, took the title subject to plaintiff's lien. Loonie v. Hogan, 5 Seld. 435, distinguished. The statute regulating mechanic's liens in the Counties of Kings and Queens, (Chap. 478, Laws of 1862,) gives a lien for labor and materials furnished for buildings, by virtue of any contract with the owner, or any person permitted by the owner to build thereon, 45 N. Y. 767. Judgment of General Term, affirming judgment in favor of plaintiff, affirmed. Opinion by Allen, J. NEGLIGENCE. RAILROADS. N. Y. COURT OF APPEALS. Judgment of General Term, affirming judgment in favor of plaintiff, entered upon a verdict. Opinion by Folger, J. PARTNERSHIP. SUPREME COURT OF PENNSYLVANIA. Decided Nov. 4, 1875. An individual debt of a partner in judg Opinion. This cause was, in February 18, 1875, on the day calendar, when defendant applied to have the cause put over the term, but motion was denied and cause was set down for trial on the 23d of that month. A second application was made. for a postponement when the cause was called for trial. The Court offered to grant the application, and to postpone the cause to the second Monday in March, on condition that defendant would stipulate either to vacate an order, theretofore granted, for witness "or to produce the witness on the trial," if living, "otherwise the deposition not to be read on any trial of this Defendant declining to give this stipulation, the motion to postpone was denied. It is a well settled principle of the law of partnership that a levy and sale of partnership property under an execution, for an individual debt of one of the partners, passes only the interest of that perpetuating the testimony of a certain partner in the partnership effects, and this can be determined only by an account of the partnership affairs, exhibiting the resulting interest of that partner. action." There being no conversion of the partnership title in the property, the laborers' lien does not attach to the proceeds of the sale, but must remain upon the partnership property until it is converted by such a sale as will entitle them to come in upon the proceeds as partnership effects. Decree and order of the court affirmed, at the cost of the appellants, and the appeal dismissed. Per Curiam. PRACTICE. N. Y. SUPREME COURT, GENL. TERM. Martine, et al. respt. v. Hicks applt. When the cause was reached in order, defendant was called and failed to appear, thereupon an inquest was taken, and judgment entered for plaintiff. In April, 1875, a motion was made at Special Term to set aside the inquest and judgment which was denied, unless defendant should give a bond in the penalty of $40,000, for judgment, costs, etc., and stipulate that no deposition of the witness referred to should be used, unless the witness be personally present, if living, for cross-examination. On defendant's refusing to stipulate, an order was entered denying motion, from which this appeal is taken. On Appeal. Held, That large discretion rests in the justice at circuit, as to whether a A refusal to adjourn a cause, except on the condition that a certain witness cause reached on the calendar should be should be produced, or that an order postponed. In this case, it is evident, for the perpetuation of the testimony of that both the Circuit Court and Special this witness should be vacated, is within Term were strongly impressed with the the discretion of the Justice at Circuit, belief that the application was not made and in this case the order should be affirmed; the good faith of the applica- in good faith, but rather in part, at least, tion was not improperly questioned; to avoid producing for cross-examination, neither were the terms unjust. the witness, whose testimony was sought to be perpetuated. Appeal from order of Special Term denying motion to set aside inquest and vacate judgment. Having such a belief, there is no reason for denying the right to impose as a con dition, that the witness should be produced, that the deposition should not be read. We think the proceeding in this case to be regular, that the defendant was denied no strict legal right, and that the court's discretion was properly exercised. Order affirmed. ter judgment for costs and allowance be set aside and vacated. The grounds of such application were that the payment made of costs taxed in favor of defendant, James, on the dismissal of the complaint as to him, was designed to satisfy all the costs, and were accepted for that purpose, and for the Opinion by Davis, P. J.; Brady and further reason that the defendant, MarsDaniels, JJ., concurring. FIRST DEPT. ton, was not entitled to costs after they had been recovered by the other defendant. The court ordered a reference to deter N. Y. SUPREME COURT, GENL. TERM, mine whether the costs already paid were intended and accepted as payment Rusk, applt. v. Marston, impld. respt. in the negative; whereupon an order was of all the costs, and the referee reported Decided December 30, 1875. granted denying plaintiff's application to Where an order has been made and en-vacate the order aforesaid, and from such tered and no appeal has been taken order this appeal is taken. On the therefrom, the matters therein disposed hearing before the referee, the deposiof will not be considered anew. Witnesses should, under the rule, sign tions of the various witnesses were not their depositions, but if a party permit signed by them, as required by rule 39 of the witnesses to depart, he shall be held the Supreme Court. to have waived the irregularity. Appeal from order denying motion to vacate and set aside a preceding order by which judgment was allowed in favor of defendant, Marston, for costs. C. Bainbridge Smith, for applt. Held, That no appeal having been taken from the preceding order, by which costs were allowed to the defendant, Marston, his right to such costs is not before the Court and cannot be considered by it. been complied with. But it was the duty of the plaintiff and appellant, for whose benefit the order of reference was made, to have seen that it was done; and having permitted the witnesses to retire without signing their depositions taken before the referee, he must be considered as having waived the irregularity he now seeks to avail himself of. This action was brought on a bond, and the complaint was dismissed during the trial as to the defendant James, upon which order of dismissal he had judg- That the rule requiring the witnesses ment entered in his favor for costs, which to sign their depositions should have costs were adjusted on the 12th day of March, 1874. After the dismissal of the complaint as to James a verdict was rendered in favor of the other defendant, Marston. At the conclusion of the trial, the exceptions taken therein were ordered to be heard in the first instance at the General Term. They were not brought to a hearing and a motion was made in behalf of defendant, Marston, for leave to enter judgment for costs and an allowance in defendant Marston's favor. An order to the effect applied for was made and entered. No appeal was ever taken from that order, but a motion was made for a re-hearing and that the order allowing defendant, Marston, to en Order appealed from affirmed, with $10 costs. Opinion by Daniels, J.; Davis P. J. and Brady J. concurring. N. Y. SUPERIOR COURT.-SPECIAL TERM. Decided January Term, 1876. It is sufficient in settling a case to refer to be the presentation of all the testito particular portions of the stenog-mony taken on the trial which either rapher's notes. A proposed case may be so amended as to party claims to be material, unless its irmake substantially a new case. Tyng v. Marsh. relevancy is so manifest as to involve an imputation of bad faith on the part of the party insisting on its insertion. The Motion to strike out certain amend-question of materiality, however, can be ments proposed by defendants to plain- better determined by the Judge or referee before whom the trial was had than by any one else, and ought in all cases to be submitted to his decision. No one will doubt that the referee in this case is especially competent to pass upon such a question, and that the relevancy or irrelevancy of the testimony may, with perfect safety, be left to his arbitrament. But the plaintiff contends that the amendments sought to be stricken out are improper in form, and that they present, to all intents and purposes, a new case, drawn by the defendants, and intended Sanford, J.-It is apparent from the papers read on this motion that the plaintiff seeks a review upon questions of fact, and particularly upon the important question whether a contract between the parties (Exhibit C), the validity of which constitutes the chief point of controversy in this cause, was voluntarily entered into on the part of the plaintiff, or whether such contract was procured from him by fraud, pressure and undue influence, as a substitute for that proposed by himpracticed or exerted by the defendants, then acting as his attorneys at law. self. So far as the objection to the form of the amendments rests upon the deIt is conceded on both sides that all fendants' omission to insert therein, in the testimony taken on the trial which is extenso, the particular portions of the material in the determination of this stenographer's notes which they desire to question should be inserted in the case on have inserted, instead of referring, as appeal. The parties differ widely, how- they have done, to the folios or pages ever, as to the materiality of the greater upon which such portions thereof are inpart of the testimony taken, the plaintiff scribed, I think it untenable. The steclaiming that but a small portion thereof nographer's notes are in possession of the is material, while the defendants insist plaintiff. I can see no reason for disthat all, or nearly all, bears so closely criminating in this regard between such upon the questions involved as to require, notes, transcribed for the use of the parfor the purpose of review, a verbatim et ties and referee in making the case, unliteratim transcript of the whole evidence der an express stipulation to that effect, as reported by a stenographer whose and depositions taken out of Court, unnotes, by mutual stipulation, were to be der commission, de bene esse, or otherfurnished to the referee and used in mak-wise, which it is conceded may be merely ing a case in the event of an appeal. referred to, and need not be set out at A wide scope is always allowed to both length, in proposed case or proposed parties in the investigation of issues in-amendments thereto. All that is requisito volving charges of fraud, and as the re- is certainty and precision, and greater sult is almost always inferential in its certainty and precision are attained by a character, it is not remarkable that there direct and unmistakable reference to well should be a difference of opinion as to the defined passages of the minutes themprecise bearing of testimony, whether selves than by long extracts therefrom, tending to inculpate or exonerate. The which of course involve the necessity of better course, in such cases, would seem comparison and authentication. Before the introduction of stenographers as a that it is made brings the case within the part of the machinery by which the ad- exception stated in Stuart v. Binsse, ministration of justice is facilitated, pre- above cited, so far as any extensive procision and certainty required that pro- posed substitutions are concerned, and posed amendments should be couched in at least requires that the whole matter be clear and explicit language, setting forth submitted to the referee, before whom the precise alterations desired. But even the cause was tried, and who is better then the insertion of depositions and ex-qualified than anyone else can be to settle hibits was proposed by a mere reference to them, without transcribing them in full. this controversy as well as the case. I am not satisfied that the amendments in question ought not to be made in form and substance as proposed. The plaintiff's motion must therefore be denied. Motion denied, with $10 costs. REMOVAL OF CAUSE TO FED- FIRST DEPT. removed unless it is done before or at the term at which the cause could be first tried, and before the trial thereof. Warren v. The Pennsylvania Railroad Company. Appeal from order denying motion made for the removal of this cause into the Circuit Court of the United States. Doubtless the settled practice of the court requires that amendments should specify the particular parts or passages of a proposed case to which an objection is made; should designate with certainty the particular points at which new matter is proposed to be inserted; should, so far as is practicable, present every alteration desired, in such form and manner that the precise difference between the N. Y. SUPREME COURT-GENL. TERM. parties may most easily and readily strike the eye of the judge or referee. Νο doubt an amendment, whereby a wholly A cause, under the act of 1875, cannot be new case is sought to be substituted for that originally proposed, ought not, in most cases, to be sanctioned, for the reason that the labor of settling cases would thus be largely increased. But this rule is founded in convenience, and has its exceptions (Stuart v. Binsse, 3 Bosw., 657, 660.) There are "cases in which the case proposed is so inaccurate that The petition of the defendant in this any attempt to amend it will amount in action shows that the suit is of a civil substance to proposing an entire change." nature, and the controversy to be between It is conceded that the proposed case, now citizens of different states, between a reunder consideration, contains but a small sident of the State of Missouri and a repart, comparatively, of the whole testi- sident of the State of Pennsylvania; that mony actually taken at the trial; and the the matter in dispute exceeds $500; that affidavits read in opposition to the motion the petitioner is about to file the redistinctly charge that "the plaintiff has quired bonds, etc.; that the suit has not so mutilated, distorted and changed the yet been tried, and could not have hithtestimony that the erto been tried at any term of this court, proposed case does not in any manner for the reason that the same has never present the case as tried." Without yet been reached in its order on the calassuming to determine whether or not endar, and for the further reason, that this charge is well founded, which I could the trial thereof has been stayed by an only do by a minute and detailed exam-order pending the return of a commisination and comparison thereof with the sion, and prays the removal of the cause stenographer's notes, I think the fact to the U. S. Circuit Court from the Su * * * * * |